Recently, in Vega v. State, (126 Nev. Adv. Op. No. 33, August 12, 2010) the Nevada Supreme Court addressed the issue of whether the trial court committed plain error – violating Defendant’s Sixth Amendment right to confrontation – when, at trial, an expert witness (Dr. Mehta) was allowed to testify regarding the contents of an examination report previously conducted by a different expert (Suiter) who was unavailable at trial.

On appeal the court concluded that, “[t]o the extent that Dr. Mehta’s testimony admitted Suiter’s written report, including Suiter’s questions, the victim’s responses detailing the victim’s medical history and history of sexual abuse, and Suiter’s observations and findings without Suiter being subject to cross-examination, we conclude that this violated the Confrontation Clause, Crawford, and Melendez-Diaz.”

However, not all of Dr. Mehta’s testimony violated the Confrontation Clause. After reviewing the video recording and the diagram of the gynecological examination, Dr. Mehta offered her independent opinion as an expert witness that there was a “healed transection” on the victim’s hymen. The Supreme Court concluded, “Dr. Mehta’s independent opinion based on the diagram and video recording does not violate the Confrontation Clause, Crawford, or Melendez-Diaz because Dr. Mehta’s judgment, proficiency, and methodology were subject to cross-examination.”

The Court then turned its attention to the issue of whether this error was prejudicial and, therefore, affected Vega’s substantial rights. In short order the Court dispelled any finding of plain error. Regarding the portion of Dr. Mehta’s testimony that violates Crawford and Melendez-Diaz (Dr. Mehta recounted Suiter’s questions, the victim’s answers depicting the victim’s medical history and history of sexual abuse, and Suiter’s observations and findings), the Court reasoned that, “this testimony was duplicative of the victim’s detailed testimony describing the sexual abuse and consistent with Dr. Mehta’s independent opinion that the victim’s hymen had a “healed transection.” Furthermore, Dr. Mehta’s testimony does not implicate Vega as having caused the “healed transection,” and she acknowledged that objects other than a penis could have caused the injury. As such, we conclude that Dr. Mehta’s erroneously admitted testimony was inconsequential, and Vega has failed to demonstrate that the Crawford and Melendez-Diaz violation was prejudicial. Therefore, we conclude that the violation did not affect Vega’s substantial rights.”

A couple of things are clear after Higgs:
1. Nevada only looks to Daubert and its factors for guidance, not strict adherence; and
2. And I quote, “NRS 50.275 provides general guidance and allows the trial judge discretion in deciding what factors are to be considered on a case-by-case basis.”

In Higgs, the court explained,

[I]n Hallmark, we stated that Daubert and federal court decisions discussing it “may provide persuasive authority.” Hallmark, 124 Nev. at ___, 189 P.3d at 650. We did not, however, and do not today, adopt the Daubert standard as a limitation on the factors that a trial judge in Nevada may consider. We expressly reject the notion that our decision in Hallmark inferentially adopted Daubert or signaled an intent by this court to do so.

A close reading of Hallmark is helpful. This court concluded that the district court abused its discretion in allowing the expert testimony of a biochemical engineer. 124 Nev. at ___, 189 P.3d at 652. In so doing, we summarized Nevada’s jurisprudence regarding expert witness testimony pursuant to NRS 50.275. 124 Nev. at ___, 189 P.3d at 650-52. We identified the three overarching requirements for admissibility of expert witness testimony pursuant to NRS 50.275 as (1) qualification, (2) assistance, and (3) limited scope requirements. 124 Nev. at ___, 189 P.3d at 650. This court then identified factors to be considered under each requirement. 124 Nev. at ___, 189 P.3d at 650-52. We were careful to note that the list of factors was not exhaustive, and we recognized that every factor may not be applicable in every case and would likely be accorded varying weight from case to case. Id. at ___, 189 P.3d at 651-52. It is worth noting that we supported our conclusion by citing to Nevada cases, not federal.

Consider the differences between NRS 50.275 and FRE 702.  NRS 50.275 states:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge.

FRE 702 contains similar language, but with additional conditions, which were added in response to the Daubert trilogy (Daubert, Joiner, and Kumho):

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Whereas the federal rule mandates three additional conditions that trial judges should consider in evaluating expert witness testimony, the Nevada statute mandates no such requirements.  Rather, NRS 50.275 provides general guidance and allows the trial judge discretion in deciding what factors are to be considered on a case-by-case basis.  In Hallmark, we outlined some factors that are useful in this inquiry, but repeatedly noted that the factors enumerated “may not be equally applicable in every case.”  124 Nev. at ___, 189 P.3d at 651, 652.  We determine that the benefit of our approach is twofold: first, it gives judges wide discretion to perform their gatekeeping duties; and, second, it creates an inquiry that is based more in legal, rather than scientific, principles.

If a person is qualified to testify as an expert under NRS 50.275, the court must determine whether his or her expected testimony will assist the trier of fact in understanding the evidence or determining a fact in issue. Hallmark at 651. “An expert’s testimony will assist the trier of fact only when it is relevant and the product of reliable methodology.” Id.

In determining whether an expert’s opinion is based upon reliable methodology, a district court should consider whether the opinion is (1) within a recognized field of expertise; (2) testable and has been tested; (3) published and subjected to peer review; (4) generally accepted in the scientific community (not always determinative); and (5) based more on particularized facts rather than assumption, conjecture, or generalization. Id. at 651-52.

If the expert formed his or her opinion based upon the results of a technique, experiment, or calculation, then a district court should also consider whether (1) the technique, experiment, or calculation was controlled by known standards; (2) the testing conditions were similar to the conditions at the time of the incident; (3) the technique, experiment, or calculation had a known error rate; and (4) it was developed by the proffered expert for purposes of the present dispute. We again note that these factors are not exhaustive, may be accorded varying weights, and may not apply equally in every case. Id. at 652.